Death Penalty: What Is ‘the Rarest of Rare?’

People protested the gang-rape of a 23-year old woman in New Delhi, Dec. 19, 2012.

When discussions of the death penalty come up in India, as they often have since a young woman was gang-raped and killed in Delhi in December, they tend to feature the words “rarest of rare.”

Four men were convicted Tuesday on a series of charges that included kidnapping, rape and murder. They will be sentenced Friday. The men’s lawyers say they will appeal the convictions. They have argued against the death sentence, but prosecutors say the crime meets the criteria for capital punishment by being “the rarest of rare.”

That language comes from a 1980 Supreme Court ruling on the constitutionality of the Indian Penal Code section on murder, which allows for either the death penalty or life in prison as punishment.

The court was asked to consider whether the lack of guidance on how to use the death penalty meant it was being applied arbitrarily, and was therefore a violation of constitutional rights. It upheld the legitimacy of offering judges a choice of sentencing, but said the death penalty should be used sparingly.

“A real and abiding concern for the dignity of human life postulates resistance to taking a life,” it said. “That ought not to be done save in the rarest of rare cases.”

It said the rarest cases were those in which the “collective conscience of the community is so shocked that it will expect the holders of the judicial power to inflict death penalty.”

These, the court said, were cases in which a murder is committed in “an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.”

According to the court, precedent says that murders of people from vulnerable social groups should be considered for capital punishment. These can include murders where a lower-caste person or member of a religious minority is killed in circumstances that “arouse social wrath,” or some murders of women, such as bride-burning and dowry deaths.

Multiple murders – where many members of a family or group are killed – also merit the death penalty.

Some rather broad categories also potentially merit the death penalty.

The murder of a wife in order to marry another woman with whom a man is “infatuated” can incur capital punishment, the court has said.

And so can the murder of any of the following: a child; a “helpless woman”; an old or “infirm” person; a person with whom the murderer has a relationship of trust; and a figure who is beloved for public service he or she has rendered and who is killed for political purposes.

In addition to murder, Indian law says the death penalty can be used in crimes such as waging war against India or offering false evidence that leads to the conviction and execution of an innocent person.

Special prosecutor Dayan Krishnan made explicit references to these prior rulings Wednesday in his arguments in favor of capital punishment for the four men convicted in the Delhi rape. Mr. Krishnan described the crime as a “diabolic” act of “extreme brutality” against a “helpless girl.”

The Supreme Court has said judges should weigh mitigating factors for defendants, such as whether they were mentally or emotionally disturbed at the time, or if they are young or old, or if the act was committed under the “duress or domination of another person.”

Lawyer Vivek Sharma argued that his client Pawan Gupta, a fruit vendor, should be given life in prison and the chance to reform because he was 19 at the time of the Dec. 16 gang rape. The Supreme Court has said that the state must provide evidence showing why it believes a convicted criminal can’t be reformed.

The guidelines give judges a lot of latitude, and as a result the death penalty isn’t applied in a coherent fashion, lawyers say. The death penalty is more likely to be given to defendants deemed to be from a lower social class, several rights lawyers contend.

“Do we ever see a privileged middle-class person with decent legal representation sentenced to death?” said Karuna Nundy, a Supreme Court lawyer.

In addition, the “collective conscience” reflects India’s geographic and cultural divisions and isn’t moved equally by all brutal crimes, lawyers say. Many crimes that would appear to amply satisfy the conditions laid down by the Supreme Court don’t get the death penalty.

Kavita Krishnan, of the All India Progressive Women’s Association, a left-leaning political group, offered the example of the sentencing in a series of murders in 2006 in the Khairlanji area of the western state of Maharastra.

The murders, in which a woman and her three children were killed by a mob, arose out of caste discrimination against Dalits, as some of India’s lowest-caste communities are now known, according to a report in The Wall Street Journal in 2007. The father, who fled when the attack began, was the only family member to survive.

The Journal reported that ahead of the attack, several people in the mob shouted, “Let’s cleanse our village of the mahars.” The word mahar is used to refer to caste groups who traditionally handled animal carcasses. Mahar is considered an insult.

The mother of the family was dragged by her hair and dunked in a drain several times before being beaten to death with sticks and bicycle chains, according to court documents. Her three children, two sons aged 21 and 19, and a daughter aged 17, were also beaten to death.

After the killings, the bodies were thrown into a river. When they were fished out and news of the crime spread among Dalit communities, riots broke out in Maharashtra.

A fast-track trial court convicted eight farmers of murder, and sentenced six of them to death. Two of the convicted men, who were 20 and 23 at the time of the attack, were given life sentences on account of their age. In a 131-page judgment in 2010, the Bombay High Court commuted the death sentences to 25-year prison terms, saying the convicted men had no prior records.

It also upheld the trial court’s ruling that this was not a caste-based crime, and that the crime was a spontaneous act of revenge after the Dalit woman and her daughter had implicated the men in an assault on a family friend, also a Dalit. The finding weakened the prosecution’s case for the death penalty.

The state of Maharashtra has asked the Supreme Court to set aside that decision, but the top court has not yet ruled.

“What is the basis for deciding a Khairlanji is not ‘the rarest of rare’ but this is?” said Ms. Krishnan, referring to the Delhi gang rape. “That’s a problem in my mind.”

The Khairlanji case isn’t unique. Many death sentences are overturned in the review and appeals process.

Death Penalty Worldwide, the online database, says Indian trial courts award about 130 death sentences a year, but the Supreme Court upholds just three or four.

Lawyers say that that it is not clear how the higher courts assign weighting to different kinds of mitigating or aggravating circumstances.

In a case decided in January, the Supreme Court commuted the death sentence of a man who in 2006 hacked his wife and daughter to death with an axe while on parole from a 12-year prison term for raping that daughter.

The January judgment noted that the man had attacked his wife in 2005 as well, soon after his parole. Even so, the Supreme Court held it to be a mitigating factor in his favor that he was poor and was upset because he was forced to spend money on rent as his wife – who had witnessed the rape and testified against him — would not allow him to live with her after his release.

“It is his further grievance that his deceased wife was adamant and he should live outside and should not lead a happy married life and that was the reason that their relations were strained,” said the court. “This also shows that the accused was feeling frustrated because of the attitude of his wife and children.”

The following month, in the criminal appeal in the kidnapping and murder of a child, the Supreme Court upheld a death penalty sentence. Among the aggravating factors supporting the death penalty was the fact that the victim was the only son among the family’s four children.

“Purposefully killing the sole male child has grave repercussions for the parents,” the Supreme Court said. “Agony for parents for the loss of their only male child, who would have carried further the family lineage, and is expected to see them through their old age, is unfathomable.”

According to Death Penalty Worldwide, created by Sandra Babcock, a professor at Northwestern University Law School in Chicago, India executed 140 people a year between 1954 and 1962. Since 2004, India has carried out only three executions, with two taking place within the past year.

But calls for the death penalty have become much more vocal, particularly since the December gang rape. One group has been calling for all convicted rapists to be sentenced to death.

After recent executions of convicted terrorists, many Indians danced in the streets and set off firecrackers, as people do at weddings and festivals.